SAMIKSHA BHATTACHARYA, MEMBER
The instant appeal has been directed by the appellant/complainant, since deceased (who was the complainant of the original complaint case being No. CC/566/2019) challenging the order dated 13.11.2019 in Complaint case being No. CC/566/2019 passed by Ld. DCDRC Kolkata Unit- III (South).
The Ld. DCDRC passed the order on 13.11.2019 which is reproduced as under:
“Today is fixed for admission hearing of the complaint. Heard Ld. Advocate appearing for the complainant. Perused the complaint petition. Complainant has claimed that even though the deed of conveyance has been executed in respect of the flat as per agreement but the possession has not been delivered. So, directing the OPs to deliver the possession of the schedule flat and to pay compensation of Rs.2,00,000/-.
On perusal of the deed of conveyance annexed with the complaint petition, it appears that the market value of the property has been stated as Rs.21,00,000/- which exceeds the pecuniary jurisdiction of this Forum of Rs.20,00,000/-. Complainant has also prayed for compensation of Rs.2,00,000/-. So as this Forum lacks the pecuniary jurisdiction to proceed with the case, complaint is not maintainable and so same is returned to the complainant for its presentation before the appropriate Forum. Thus, CC/566/2019 is accordingly disposed of, being not admitted.”
Being aggrieved by and dissatisfied with the above order, the appellant No. 1, since deceased/ original complainant filed the instant appeal.
In course of proceeding of the appeal, the appellant No. 1 namely, Mrs. Sunita Roy expired on 25.02.2023. The appellant No. 2, namely, Debopriyo Roy, her legal heir was substituted in her place vide order No. 12 dated 22nd June, 2023 passed by this Commission.
In course of argument, Ld. Counsel for the Appellant No. 2 has drawn our attention by showing internal page No. 6 of the deed of conveyance dated 11.12.2017 executed and registered by and between the parties wherefrom it appears that the agreed consideration was Rs.12,00,000/- (Rupees Twelve Lakh) only. The Ld. Counsel for the appellant No. 2 has submitted that the Ld. DCDRC has failed to hold that the value of the service would be the total consideration amount and the compensation claimed. Ld. DCDRC has erred in law while deciding the pecuniary jurisdiction holding the market value of the flat as sacrosanct in question contravening the well-settled proposition of section 2(1)(d)(ii) and Section 11 of Consumer Protection Act, 1986. He has further submitted that including the other amount towards reliefs the deceased complainant/appellant No. 1 filed the complaint case for a total suit value of Rs.14,50,000/- which is within the pecuniary jurisdiction of the District Commission. Hence, he has prayed for setting aside the order dated 13.11.2019 and to pass appropriate order as this Commission may deem fit and proper.
Though the notice was served upon both the respondents, none appeared on behalf of Respondent No. 1. Only the Respondent No. 2 appeared through their Ld. Advocate.
Ld. Counsel for the Respondent No. 2 has submitted before us that the complaint is not maintainable due to excess pecuniary jurisdiction .
Ld. Counsel for the Respondent No. 2 has drawn our attention by showing the e-assessment slip issued by Directorate of Registration and Stamp Revenue, Government of West Bengal dated 06.12.2017, wherefrom it appears that the market value of the property in question is Rs.21,00,000/-. Therefore, the Ld. District Commission has rightly dismissed the complaint case on the ground of excess pecuniary jurisdiction. In support of his argument, the Ld. Counsel for the Respondent No. 2 has cited the judgment passed by Hon’ble National Commission passed in Ambarish Kumar Shukla vs. Ferrous Infrastructure and the judgment passed in Parikshit Parashar vs. M/s. Universal Buildwell Private Limited and others.
Upon hearing of the parties and on perusal of the entire materials on record it appears to us that as per deed of conveyance the total consideration of the flat in question was Rs.12,00,000/- (internal Page No. 6 of the Deed of Conveyance). It is also evident from running page No. 43 of the memo of appeal that Rs.12,00,000/- has been received from the purchaser out of consideration money as Memo below and in that column, the total consideration has been mentioned as Rs.12,00,000/-. The Appellant No. 1 since deceased, has filed the Complaint Case before the Ld. DCDRC praying for direction upon Respondents/OPs to deliver the possession of the schedule flat to the complainant by obtaining completion certificate in respect of scheduled building along with compensation of Rs.2,00,000/- and litigation cost of Rs.50,000/-.
The complaint case being No. CC/566/2019 has been filed by the appellant No. 1, since deceased/ the complainant of the original case as per CP Act, 1986.
Before considering the pecuniary jurisdiction of this case we have look into Section 11 of CP Act, 1986 once. Section 11 of CP Act, 1986 is reproduced as follows hereinunder:
“Jurisdiction of the District Forum
- Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complainants where the value of the goods or services and the compensation, if any, claimed “does not exceed rupees twenty lakhs.
- A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-
- The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
- Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided, that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be acquiesce in such institution; or
- The cause of action, wholly or in part, arises.”
In view of above discussion, we are of considered view that to determine the pecuniary jurisdiction of the present case the suit value is to be considered as Rs.12,00,000/- (which is total consideration of the case flat) plus the compensation of Rs.2,00,000/- as claimed by the complainant i.e., Rs.14,00,000/- in total. Here the complainant has paid Rs.12,00,000/- as total consideration which is clearly mentioned in the deed of conveyance. There is no provision in the statute that the value of the suit should be decided on the amount of market value of the property. The citation filed by the Respondent No. 2/OP No. 2 is not at all applicable here since in neither of the judgments it can be construed that the market value would be considered instead of total consideration as per CP Act, 1986. Therefore, we are of considered view that the Ld. DCDRC has erred in deciding the pecuniary as per pecuniary jurisdiction of the instant case. Since there is jurisdictional error in the order passed by the Ld. DCDRC, it certainly needs the interference of the appellate jurisdiction of this commission.
Accordingly, Order No. 2 dated 13.11.2019 in CC/566/2019 passed by Ld. DCDRC is hereby set aside.
The present appeal is allowed against Respondent No. 1 ex parte and Respondent No. 2 on contest.
The appellant No. 2 is hereby directed to file a substitution petition since the original complaint was filed by Mrs. Sunita Roy, since deceased and in her place the appellant No. 2 is substituted in the present appeal.
The appellant No. 2 is directed to incorporate his name as complainant No. 2 before the Ld. DCDRC concerned by filing the proper substitution application.
Ld. DCDRC is requested to restore the case in its original file and number and to proceed with the case as per law after the allowing the substitution petition filed by the appellant No. 2 and thereafter let the complaint case be admitted and registered.
Since the case was dismissed on the admission stage, we refrain ourselves from passing any comment on other issues involved in the case.
The appellant no.2 is directed to serve the notice upon respondent no.1 for their information along with this order.
The Ld. DCDRC is requested to dispose of the case within three months from the date of receiving of this order.
The appeal is, thus, disposed of accordingly.
Fix 30.01.2024 for appearance of the parties before the Ld. DCDRC Kolkata Unit-III (south).
To date for filing affidavit of service in respect of respondent no.1 by appellant no.2.
Let a copy of this order be sent to the Ld. DCDRC Kolkata Unit-III (south).
